The US Court of Appeals for the Second Circuit has reversed a district court’s award of summary judgment to Cablevision, stating the the "Remote Storage” Digital Video Recorder system ("RS-DVR") proposed by the latter violated the Copyright Act by infringing plaintiffs’ exclusive rights of reproduction and public performance. In the case at issue, the RS-DVR system allows television users to record cable programming on central hard drives housed and maintained by Cablevision, an operator of cable television systems. RS-DVR customers may then receive playback of those programs through their home television sets, using only a remote control and a standard cable box equipped with the RS-DVR software. The customer can record programming by selecting a program in advance from an on screen guide, or by pressing the record button while viewing a given program. Once the program has begun, the customer cannot record earlier portions of it. If multiple people decided to record the same program, a separate copy would be made for each of them. Differently from stand-alone DVR set-top boxes, such as TiVo, recorded cable programming is then stored at a "remote" location, i.e. Cablevision's own servers. According to the Second Circuit, the operation of the RS-DVR system by Cablevision does not amount to direct copyright infringement.The appeals court has considered a bundle of interesting questions, that we will briefly examine in turn.

First of all, the storage system at issue involves the the buffering of data, and the relevant question is whether this process could amount to an infringement of the reproduction right of the content providers (broadcast and cable channels) . In practical terms, the single stream of data gathered from the content providers is split into two: whereas the first is routed immediately to customers, the second "flows into a device called the Broadband Media Router (“BMR”) which buffers thedata stream, reformats it, and sends it to the “Arroyo Server,”, id at 7. This latter consists mainly of two data buffers and a number of high-capacity hard disks. After having moved the stream of data to the first buffer (the "primary ingest buffer"), the server automatically inquires as to whether any customers want to record any of that programming. Only in case the customer requests a particular program, "the data for that program move from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer". In this respect, content is taken from the stream of programming and stored into the BMR and the first buffer independently from actual customer requests.In order to constitute a copy as defined in US copyright law, the Second Circuit asserts that two conditions should be met: 1) the work should be embodied in a medium, in the sense that it could then be perceived, reproduced, etc., from that medium (briefly, copied from that medium); 2) the work must must remain thus embodied “for a period of more than transitory duration”.Therefore, the storage of content per se results in “copying” only if it is not transitory. The appeals court thus runs counter the Copyright Office’s 2001 DMCA Report, according to which a word is “fixed” in a given medium if the work is capable ofbeing copied from that medium for any amount of time, i.e. also transitory. Works in the case at issue are “embodied” both in the BMR buffer and the primary ingest buffer (i.e. they can be copied, respectively, from the BRM buffer to other components of the RS-DVR system and from the primary ingest buffer onto the Arroyo hard disks), but are not “fixed” because- “no bit of data remains in any buffer for more than a fleeting 1.2 seconds” and- “each bit of data here is rapidly and automatically overwritten as soon as it is processed”.-Secondly, as regards the playback copy made on the hard disks of Cablevision’s Arroyo Server pursuant to a customer request, the question arises whether it is Cablevision who made that copy, and in that case there would be a direct infringement of copyright. According to the appeals court the decisive element should be the “volitional conduct that causes the copy to be made”. Since copies are made automatically upon the customer’s command, a RS-DVR user is similarly situated to a VCR user or to a customer using a photocopier. Cablevision would resemble a “a store proprietor who charges customers to use a photocopier on his premises, and it seems incorrect to say, without more, that such a proprietor “makes” any copies when his machines are actually operated by his customers”. Besides, Cablevision’s control over the content recorded by these customers is limited to the channels of programming available to a customer and not to the programs themselves (as it would be the case in the VOD context).

The final issue attains to the legal nature of the RS-DVR playback to a particular customer, in particular whether it should be considered as the transmission of a performance to the public and therefore an infringement of the content providers’ exclusive public performance rights. According to the Second Circuit, because the RS-DVR system only makes transmissions to one customer using a copy made by that customer, the “universe of people” capable of receiving a RS-DVR transmission is limited to that single customer. As the Court states,“the use of a unique copy may limit the potential audience of a transmission and is therefore relevant to whether that transmission is made to the public”, id. at 41.

See R.Kazemi,Online-TV-Recorder - nun auch in den USA vor dem Aus?,MMR 2007,5, VIII for some German court decisions on the remote recording of TV-programs and the recent WIZZGO decision by the Parisian Tribunal de Grande Instance.